J.B. Koshy, J. 1. Petitioner who was an accused in the Vypin Liquor Tragedy case was sentenced to undergo rigorous imprisonment for a period of seven years. The Supreme Court enhanced the above punishment to one of imprisonment for life. He wanted to set off the undertrial period spent by him in jail against the sentence of imprisonment under S. 428 of the Code of Criminal Procedure. Learned single Judge before whom it was posted referred the matter to Division Bench.
2. Since interpretation of S. 428 Cr. P.C. is involved, the above section is extracted below:
"428. Period of detention undergone by the accused to be set off against the sentence of imprisonment- Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him."
S. 428 is clear and positive. An absolute right for the set off is granted under the section for the period of pre-conviction detention of an accused against the term of the imprisonment imposed whatever be the term of the imprisonment and whatever be the factors taken into account by Court while imposing the term of imprisonment (Hardey Singh & another v. State of Punjab - AIR 1975 SC 179). The contention that since the punishment is awarded by the Supreme Court, the benefit of set off can be given only by the Supreme Court cannot be accepted because right to set off is an absolute right given under S. 428 Cr.P.C. Even if it is not mentioned in the Supreme Court judgment, this right cannot be denied. A miscellaneous application can be filed at any time white the sentence was running (Suraj Bhan v. Om Prakash and another - AIR 1976 SC 648).
3. The next question to be considered is whether set off can be given when sentence is imprisonment for life. Earlier, the Supreme Court in Kartar Singh v. State of Haryana (AIR 1982 SC 1439) held that since life imprisonment is not for a fixed term, the question of set off under S. 428 will never arise. But, the above view was overruled by a Constitutional Bench of the Supreme Court in Bhagirath v. Delhi Administration (AIR 1985 SC 1050). There, it was held that the 'term' mentioned in S. 428 Cr.P.C. is not a fixed term. Therefore, life convicts also are entitled to get the benefit of S. 428 Cr.P.C. Paragraphs 7 and 8 of the above decision are as follows:
"7. We see but little warrant for qualifying the word 'term' by the adjective 'fixed' which is not to be found in S. 428. The assumption that the word 'term' implies a concept of ascertainability or conveys a sense of certainty is contrary to the letter of the law, as we find it in that section. Even the marginal note to the section does not bear out that assumption. It rather belies it. And, marginal notes are now legislative and not editorial exercises. The marginal note of S. 428 shows that the object of the Legislature in enacting the particular provision was to provide that 'the period of detention undergone by the accused' should 'be set off against the sentence of imprisonment' imposed upon him. There are no words of limitation either in the section or in its marginal note which would justify restricting the plain and natural meaning of the word 'term" so as to comprehend only sentences which are imposed for a fixed or as certainable period.
8. To say that a sentence of life imprisonment imposed upon an accused is a sentence for the term of his life does offence neither to grammar nor to the common understanding of the word 'term'. To say otherwise would offend not only against the language of the statute but against the spirit of the law, that is to say, the object with which the law was passed. A large number of cases in which the accused suffer long under trial detentions are cases punishable with imprisonment for life. Usually, those who are liable to be sentenced to imprisonment for life are not enlarged on bail. To deny the benefit of S. 428 to them is to withdraw the application of a benevolent provision from a large majority of cases in which such benefit would be needed and justified."
The Supreme Court while deciding the case also referred to the earlier Constitutional Bench decision reported in Gopal Vinayak Godse v. State of Maharashtra (AIR 1961 SC 600). There, it was held that a prisoner sentenced to life imprisonment is bound to serve the remainder of his life in prison unless the sentence imposed upon him is commuted or remitted by the appropriate authority. It was further held that since such a sentence could not be equated with any fixed term, the Rules framed under the Prison Act enabled such a person to earn remissions but that such remissions were to be taken into account only towards the end of the term. Under S. 432 Cr.P.C. appropriate Government has power to remit whole or any part of the punishment to which a person has been sentenced. Under S. 433(b) of the Code, appropriate Government has also the power to commute the sentence of imprisonment for life to imprisonment for a term not exceeding fourteen years or for fine. The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under S. 432 or 433 of the Code as such set off has lo be given at the end of the term of sentence. In the absence of such an order under S. 432 or 433(b), the right of set off provided under S. 428 or remission given will not be of any help to the prisoner, who is sentenced to undergo imprisonment for life.
4. The matter was again considered by the Supreme Court in Sat Pal alias Sadhu v. State of Haryana and another (1993 Crl. L.J. 314) wherein the Supreme Court held that after fourteen years, release on the ground that Government must be deemed to have commuted sentence for imprisonment for life to that of rigorous imprisonment for fourteen years cannot be accepted as power under S. 433(b) cannot be deemed to have been exercised in the absence of specific order by the State. This matter was again considered in Life Convict Laxman Naskar v. State of West Bengal and another (2000 AIR SCW 3060). As per the West Bengal Correctional "Services Act, life imprisonment was equated to 20 years of imprisonment. Despite that it was held by the Supreme Court that unless Government specifically pass orders to that effect, life imprisonment means imprisonment for entire life. The Supreme Court also considered the earlier decision in State of Madhya Pradesh v. Ratan Singh (AIR 1976 SC 1552) wherein it is held that a sentence of imprisonment for life does not automatically expire at the end of a fixed term including the remissions, because of the Administrative Rules and a sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under S. 401 of the Code of Criminal Procedure, 1898 (corresponding to present S. 432). In this case also, even though set off is a right to the prisoner and it is available even when the sentence is for life imprisonment, since set off can be availed only at the end of the term of imprisonment, question of set off will arise only if Government has remitted the sentence under S. 432 Cr. P.C. or commuted under S. 433(b) Cr. P.C. If such a remission or commutation is given by the government from that period one is entitled for set off even though sentence by court is for imprisonment for life. Unless orders are passed by the Government under S. 432 or 433(b) Cr.P.C., petitioner, being a life convict, will not get the benefit of set off allowed under S. 428 of the Code of Criminal Procedure.
5. The Criminal M.C. is disposed of accordingly.